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REVIEW OF AUGUST CAV OPINIONS

[Posted August 29, 2011] (Whew!) I’ve just completed a stretch of about five weeks in which I filed as many appellate briefs as I normally file in about four months. Toward the end of that stretch, the Almighty sent an earthquake and a hurricane at me, presumably to remind me to get back to the task of analyzing appellate opinions; evidently He missed getting His regular dose of appellate humor. With apologies for my having brought these natural disasters upon the commonwealth, here’s a review of the published opinions handed down by the Court of Appeals during the month of August. The judges, by the way, have been charitable toward me, issuing only four such opinions during this time.

Criminal law

On August 9, the court decided Perry v. Commonwealth, which is one part hearsay discussion and two parts waiver analysis. The latter topic is always painful, but it’s a necessary component of appellate practice, and trial lawyers need to learn from the example of the unfortunate defense lawyer.

Perry involves two counts of attempted robbery and two related firearms charges. The victim, who was pistol-whipped by an assailant, came home and reported to his father what had happened. The report came within ten minutes of the attack. At trial, both the victim and the father testified about the report. During the father’s testimony, the defense objected that the statement was hearsay. Before the lawyer could finish her objection, the prosecutor interrupted, saying, “Your honor, at this point it’s not being offered for the truth of the matter, and I think possibly it can be established as an excited utterance as an exception to hearsay.”

The judge overruled the objection without much of an explanation. The father then related to the jury what his son (and the son’s cousin, who had also been present during the incident) had told him. When the Commonwealth rested, the defense moved to strike, since the cousin (who was one of the robbery victims) had not testified, thus denying the defendant of his right to be confronted by his accuser.

This motion was somewhat less than successful, and the jury convicted the defendant. The defense then filed a motion to set aside the verdict, arguing that Crawford v. Washington barred the introduction of the father’s testimony. That motion, too, was denied, and the court entered a judgment of conviction.

On appeal, the CAV first addresses the question of whether the reports to the father were excited utterances. The court finds that the passage of at most ten minutes does not mean that the statements weren’t contemporaneous, excited utterances. The incident was still fresh in the victims’ minds, and the passage of such a short time did not allow for reflection as a precursor to a fabricated statement, one of the underpinnings of this hearsay exception. The court also finds that this statement was at most harmless error, given the other testimony in the case. Specifically, the victim had testified to the same thing that his father did, so the jury already heard the story from someone who saw it all firsthand.

So much for the substantive stuff; on to the salacious details (the waiver rulings).

During the cross-examination of the victim, one of the prosecutors noticed that one of the jurors was dozing off. We prefer conscious jurors, of course, and before redirect, the prosecutor discreetly let the judge know about the problem. At the prosecution’s request, the judge immediately admonished the jury to give its full attention to the case; that was the end of the issue until after the guilty verdict.

In his post-trial motions, the defendant raised this issue as a matter of juror misconduct. That might well be a winning argument, but it will have to win for another appellant, because the Court of Appeals finds that this defendant waived the issue by not objecting or moving for a mistrial. You might find this ruling to be harsh, but I find it to be absolutely correct; a party has an obligation to make a contemporaneous objection, and to ask the trial court to address potential error in time to be able to correct it. In addition, the defense may have made a strategic decision not to fuss about the issue, reasoning that inattention by this particular juror might be helpful to the defense during deliberations. Appellate courts won’t give parties second chances based on failed strategic gambles like this.

Finally, the court rules that the Crawford challenge is barred as well, because it was raised too late. Keep in mind that an objection based on hearsay – as the defendant’s objection was here – is insufficient to preserve the discrete question of whether a Crawford violation has occurred. The late D.C. sniper, John Muhammad, famously found this out during his appeal, decided in 2005, and this defendant gets the same treatment today. The court also reaffirms that you can’t argue admissibility of evidence in a motion to strike, as this defendant tried to do.

On August 2, the court announced three published opinions. All three are criminal appeals; all three opinions are authored by Judge Kelsey, and accordingly, all three are methodical and meticulously researched and footnoted. As so often happens, all three result in losses for the appellants. (Yes; the criminal appellants are 0-for-August, with but one opinion day left in the month.)

The first of these is Cole v. Commonwealth, a bigamy prosecution in which the defense tried a sophist’s approach. The defendant acknowledged that he was married to Ms. A at the time he participated in a ceremony to marry him to Ms. B. (Love is blind, and also sometimes it just can’t wait for the final divorce decree – assuming there was one even in the works with Ms. A.) He defended the prosecution n the following basis:

The law regards a bigamous marriage as absolutely void. The crime of bigamy requires that you actually marry someone while you’re already married to someone else. Since the second marriage is void, you haven’t achieved anything by going through with the second ceremony, so you haven’t truly married the second person and you can’t be convicted.

Did you follow that? The trial court evidently followed it with a bemused smile before rejecting the defense, and the CAV panel does the same in this appeal. In analyzing this primary issue, the opinion goes to enormous lengths to justify the holding, tracking the law all the way back to Blackstone’s Commentaries and the English common law. It’s a very interesting stroll through this field of law to refute a too-cute-by-half argument. The irony of all this is that the court’s final citation alone probably would have been sufficient to dispose of the case by the doctrine of stare decisis: “Thus Virginia follows the traditional view that ‘a bigamous marriage is void ab initio’ and yet ‘persons who engage in such a marriage may be subject to criminal prosecution.’ Hager v. Hager, 3 Va.App. 415 . . . .” Taking this approach might have saved the author nearly three pages of text, but it would have deprived us of the Virginia judiciary’s most recent citation of an Eighteenth Century legal treatise, and for we fans of history, that’s never a completely bad thing.

Before leaving, the court also addresses and rejects the appellant’s companion contentions that the bigamy statute was void for vagueness, in memorable language: “Cole, however, does not argue [that] the text of Code §18.2-362 oscillates between legality and illegality. He contends that the statute very clearly criminalizes nothing.” It next notes that there are two statutes that criminalize bigamy, with one calling it a felony and the other classifying the offense as a misdemeanor. The court points out the differences between the two statutes, and reaffirms that prosecutors have the discretion to choose which crime to pursue.

Finally, the court swats aside the suggestion that a two-year prison term for bigamy constitutes cruel and unusual punishment. While you may be surprised that this defendant got a sentence like that, you should know that this is the minimum term specified for this offense. And as the panel notes, no term short of life imprisonment has been found to be cruel and unusual punishment where the sentence is within the limits provided by statute.

The identical panel that decided Cole also contributes Allen v. Commonwealth, involving six violent felonies and just one legal issue: whether Allen should have been tried alongside his codefendant. The court previously rejected the codefendant’s appeal on the same argument, in an unpublished opinion released in February. In this decision (published this time), the court notes that the joint-trial statute now favors joint trials, if the Commonwealth shows good cause for such.

A slight digression is on order here. That phrase – good cause – wears many disguises to different costume parties. Its most famous meaning in an appellate context is in the contemporaneous-objection rule, which allows an appellate court to consider an argument raised for the first time on appeal, “for good cause shown.” Appellate lawyers know that getting an appellate court to apply this exception is akin to getting a camel to pass voluntarily through the eye of a needle. We’ve heard of instances where it miraculously happens, but we know better than to expect it to help us out where our trial lawyers have neglected to make the argument below.

In another context, it shows up in trial-court settings. One notable example is the provision in Rule 3:19(b) for relief from default where a defendant has let a filing deadline slip by. That defendant can get relief before judgment ”for good cause shown”; and in this context, that’s a fairly lenient standard, akin to “a decent explanation accompanied by no material prejudice.” Caveat: check AME Financial v. Kiritsis, 281 Va. 384 (2011) for a recent instance where the justices affirmed a finding that no “good cause” existed.

So where in the continuum does this “good cause” fall? Does the prosecution have to show something extraordinary to justify a joint trial, or is an excuse that’s slightly better than “bad hair day” good enough? My sense here is that the prosecution won’t have an overly difficult burden to get a joint trial; I believe that the justices will afford substantial deference to trial courts’ decisions on whether to order them. The courts still can’t order joint trials where doing so would prejudice at least one of the defendants, but proving prejudice is the defendants’ burden.

That’s the dispositive factor in this appeal. Allen argued that his codefendant was vastly more implicated in the crimes than he was, so it was unfair to encourage the jury to paint the two with the same brush. The CAV panel finds that this plaintive argument falls short of proving the required prejudice, and it affirms the trial court’s decision to conduct one trial instead of two. Note that once the prosecution shows that aforementioned good cause, the statute now provides that the trial court shall order a joint trial, absent a showing of prejudice. That’s true even where the great majority of the evidence relates to one defendant; even where the evidence is stronger against one defendant than the other, severance isn’t required.

The final case decided on August 2 is Johnson v. Commonwealth. As I read the opinion, it called to mind my frequent-guest account with the Hilton hotel chain. After this one, Mr. Johnson is probably going to qualify for elite status with the Department of Corrections. He’s a repeat customer whose earlier convictions for gang-related violence were affirmed by a different CAV panel back in May. Now he’s appealing four convictions for a separate attack, two months after the first one.

The opinion repeats a familiar theme; sufficiency challenges are methodically rejected, while evidentiary challenges fall victim to the contemporaneous-objection rule. The primary rulings here relate to the existence and purposes of a mob. The opinion points out that it’s possible for a perfectly lawful assembly of persons to be transformed into a mob by a simple decision, albeit a group one, to perform any one of several unlawful acts. Here, a group to which Johnson belonged got into a brawl inside a night club in Hampton. The owners of the club broke up the fight in the normal way – by using an air freshener known as mace.

Really, all that did was put the fight on Pause, and move it outside. There, Johnson and his compatriots spied one of The Opposition, standing alone. You know how the next part of this story goes; the gang left the unfortunate adversary with a couple of fractured vertebrae, as they walked away asking, “Who next?” “Where the rest of them at?”

Editor’s note: It pains a language geek like me to quote such grammar; but I’ve got to be faithful to the record here. I suppose Johnson is lucky that the prosecutor and trial judge weren’t word nerds, too, or he’d be facing a couple more felony counts.

This panel of the CAV finds the evidence to be sufficient to support convictions of maiming by mob, conspiracy to maim by mob, and participation in a criminal street gang, and really, there’s no fault to be found in any of these rulings. The closest one is probably the conspiracy charge, since that requires an agreement. But as with most intent-based crimes, proof of intent comes from circumstantial evidence, and the mob here provided plenty of that.

Johnson also appealed a couple of evidentiary issues. One of those relates to the introduction of a criminal record of another person (not Johnson). Johnson’s lawyer understandably advised the judge in advance that when that evidence was offered, he would object. But inexplicably, when the time came there was no objection at all; the conviction record was offered and received in evidence. The appellate ruling here is as predictable as tomorrow’s sunrise: that issue has been waived.

This lesson is simple, but it’s worth repeating. If you’re going to object to something, you must do so at an appropriate time (either in a motion in limine, or else when the evidence is offered), and you must get a ruling. You can’t just forecast an objection and then fail to follow up on it; that’s not a “contemporaneous” objection. And you can’t advise the judge of what you forecast as an upcoming problem and then assume that she’ll make an appropriate ruling when the time comes; that’s not her job.